Quiet Title in Missouri

Gwen,

This article is written by Dave Krieger, ” The QT man”

http://foreclosureblues.wordpress.com/2011/01/11/missouri-trustee-fails-on-motion-to-dismiss-in-pending-quiet-title-action/

MISSOURI TRUSTEE FAILS ON MOTION TO DISMISS IN PENDING QUIET TITLE ACTION
Posted on January 11, 2011 by Foreclosureblues
Today, January 11, 2011, 2 hours ago | Dave KriegerGo to full article

TRUSTEE FAILS ON MOTION TO DISMISS IN PENDING QUIET TITLE ACTION
By Dave Krieger

Most of the judges and foreclosure attorneys on both sides are watching this case carefully. It should be noted here that former civil rights lawyer and 30-year trial litigator Gwen Caranchini, no stranger to the blog sites by any means, had her best day in court in years in her case against Bank of America, MERS and an alleged “substitute trustee”.

On Friday, January 5, 2011 at 1:30 p.m., Caranchini showed up to a court hearing in the Jackson County Circuit Court on Friday. The trustee, who in this particular case is going it alone (as Bank of America and MERS removed the initial claims Caranchini filed to federal court) pro se, filed a motion to dismiss her breach of fiduciary duty claims and attempted wrongful foreclosure claims as well as a motion for sanctions for filing the claims.

The judge in this case has known Caranchini for some 30 years. Even the judge was stymied by the arguments Gwen was proffering, admitting that she felt as if she was “in kindergarten” when it came to understanding the issues and terms involved in the discussion. The judge set over two hours aside, in part to get educated, as Caranchini came to court loaded with documentation, including the slip order from the Ibanez decision, which she handed a copy of to the judge, who read it at the start of the hearing.

The problem in Caranchini’s case … the documents on file in the Jackson County Recorder’s office that were relevant to her case “did not make sense” to the judge; as compared to much of the recordation issues in Ibanez. According to this author’s research, which is used to craft chain of title assessments for review by title companies and attorneys in their preparation for litigation, when the chain of title was properly demonstrated to the court, the judge “got it”.

The judge in this instance looked carefully at the stamps (of the signors), the dates, what the documents were proffered to be … and smiled; she had never had this pointed out to her. Caranchini then discussed how Chicago Title, who issued the declination letter which is incorporated into Section 12 of the book “Clouded Titles”, found her chain of title to be irretrievably broken. The judge then inquired as to whether Chicago Title would offer up an expert to testify, to which Caranchini answered in the affirmative.

To prove a point about the differences in arguments … Caranchini then went through some of the issues involving securitized loans; the judge did not understand the importance of it. The argument then got down to the note (which you knew it would at some point). The judge looked at the trustee and asked him if he had the original note. Then she asked him if he ever had the original note. Then she asked him if he had ever seen the original note (which he previously attempted to foreclose on). Then she asked him whether the alleged lender had the original note. To all of these inquiries, the trustee responded … NO!

[In this case, the appointment of successor trustee was filed 13 months BEFORE the assignment proving the alleged lender was filed; a trust whose last 10-K was filed in March of 2007!]

The Court then granted the trustee’s motion to dismiss the wrongful foreclosure from the lawsuit; however, the trustee’s motion for dismissal of breach of fiduciary duty was denied!
Then the judge urged the trustee that he should join in a settlement conference scheduled by a federal magistrate in U.S. District Court for the Western District of Missouri in Kansas City, which set for February 18, 2011.

Then the judge denied the trustee’s motion for sanctions against Caranchini, saying, “these are developing claims and we have to let them develop”, allowing Caranchini thirty days to amend her petition and to bring the quiet title and declaratory judgment claims back into court that had been previously removed, as the Court indicated they needed to be put back into the litigation in state court to be joined with the trustee. (The trustee was not a party to the action when the quiet title and declaratory judgment counts were removed.)

From Caranchini’s own observations, she is totally convinced that the judge understood the issues involving agency, quiet title, declaratory judgments, breach of fiduciary duty and negligence (some of which have damage claims attached). According to Caranchini however, the judge did not understand all of the terms and arguments involving securitization and essentially admitted that on the record.

This goes back to the problems the author has previously written about regarding what is fundamental in proving agency and what is not. Education of the Court in pointing out the flaws on your recorded documents is extremely important. The declination letter is also on the record. The Ibanez decision in this instance proved to gain impetus with the Court as well as to its applicability regarding proving agency. The judge ordered deposition of a Chicago Title expert witness (That’s part of discovery folks!) by the end of March and set a trial date for October 24, 2011 (unless the parties settle beforehand). Needless to say, the trustee wasn’t happy. He’s still a Defendant in the lawsuit. Not having even seen the Note didn’t sit well with the judge either. You can probably surmise where this case is headed.

Two days later, Caranchini received an Order in the mail from another judge in Jackson County Circuit Court, where she had a motion for temporary restraining order against Bank of America et al: “Now on the 5th day of January, 2011, the Court takes up and considers Defendants Bank of America and BAC Home Loan Servicing, LP’s Motion to Dismiss for Lack of Subject Matter Jurisdiction and Request to Quash Hearing on Plaintiff’s Request for TRO. After being duly advised on the premises and for good cause shown, the Court hereby denies the same without prejudice. IT IS FURTHER ORDERED that additional proceedings be STAYED due to this cause pending in federal court and the possibility of remand back to circuit court. IT IS SO ORDERED.”

This would certainly cause the author to surmise that there is the possibility for a remand of the original case from the federal court back to the Jackson County Circuit Court, where the action to quiet title in the county in which the property is located is supposed to be heard. Because there are both state and federal judges involved, it would also probably be safe to assume that both state judges are in agreement on the procedural aspects of this case and that they’ve also had at least telephone conferences with both judges in the U.S. District Court. Look for a lot of action on this case in February (the case was filed last April). Look for possible settlements and an agreement to allow quiet title with the purchase of homeowner’s indemnity coverage! Caranchini is following my suggestions as I outlined in the book “Clouded Titles”.

http://www.cloudedtitles.com

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